Attributes of Private Property Rights Property Rights bundles Possession/use Exclude Transfer: most important in capitalist society permits

property to go to highest bidder maximize profitability/efficiency Alter/Destroy Enjoy profits/fruits Aspects of property use fairness efficiency: Demsetz focus on resource, ignores cultural impact move toward private property in world of scarce resources b/c would not otherwise survive conditions that facilitates private property regimes assumptions: self-interested maximizer social norms are weak, ineffective large heterogeneous group high negotiation cost: hold-outs high enforcement costs: free-riders externalities lost benefits: opportunity cost from over-exploitation direct detriment cost of privatizing goes down: cost of externalities > cost of internalizing externalities externalities externalities Rule vs. Standards Rules clarity, certainty, reduces favoritism BUT rigid Standards flexibility, can be fine-tuned BUT unclear, harder to administer, requires balancing Theories of Property Locke Logic property in our own bodies ownership of our labor mix labor w/ commons => separate from commons => private property limitations on ownership (manna) leave enough/as good for others take only as much as can be used w/o spoiling Notes

first possession first come, first served economic development oriented: most appropriate for vast resources w/ minimal means of exploitation low population density application to? non-perishable goods (ex. Minerals) how much is enough? what is as good application to intellectual property Radin/Hegel: Personhood specific to non-fungible property objects help to develop personhood non-economic value (ex. Wedding band) application difficult: hard to separate out exaggerated values EX. Artists residual rights (see handout) alienable, can be waived Rawl: distributive justice Goal: just distribution of goods in society minimal level of primary goods (essential to function/engage in society) if increase, must increase lowest class disadvantage needs to grow w/ economy assumes risk aversion Posners reaction (?) Utilitarianism: consequentialist mindful of OUTCOME Goal: maximize TOTAL wealth not concerned w/ distribution (commonly imply capitalism, private property) Assumptions psychological: people are individualistic, rational maximizers presence of well-functioning market exchange medium, low transaction costs easy access to information social controls are ineffective and/or inefficient - social norms do not affect behavior reasons for collective ownership limited to: presence of external threats lifestyle, shared social norms, ideology: non-resource based economies of scale role of technology in transition from collective to private property?) Hardin: tragedy of the commons starting point: population growth and impact over-exploitation of common resources based on self-interest solutions government regulation urge conservation privatization Berkeley parking gift for 2 hours (p.20)

invest in enforcement, lost revenue incentive to linger for 2 hours, encourage over-use CALABRESI & MELAMED?? PP. 281-87 Legal Institutions Acquisition Discovery/Conquest Johnson v. MIntosh: P acquired land from Indians, D from U.S. government Background: first to acquire, wins principle Issue: who has SUPERIOR title Right vs. permission to occupy right can only be deprived via procedure permission can be revoked at will ** RIGHT OF FIRST POSSESSION Ct: for D b/c just desserts: Indians uncivilized behavior prevents them from title via assimilation precedent: deference to legislative, executive century-old practices CONQUEST: distinguishes the rights of the conquered Lockean: encourage ambition, development law of first discovery encourage capture, productive activity minimize disputes between European powers Indians didnt own land b/c they didnt SEPARATE land and claim it property Rose: right of first possession reflects perspective that man is OUTSIDE of nature; mans mark is cultivation, manufacturing, development Adverse Possession underlying concept statute of limitations: CA = 5 years: must bring action to eject w/in 5 means to acquire title: once meet criteria => conveyance of property rights developmental/Lockean slant: at odds w/ preservation incentive to police land directed at relatively more efficient use of land burden on owner (to police) & possessor (to verify deed prior to investment) Elements: possession has been Actual: only if AP is making actual/productive use of land constructive possession: an AP w/ color of title (bad deed + good faith) has title to all land in deed, not just parts actually possessed hostile and w/ claim of right: claim land as his own, w/o implied or express permission presumptive permission: using land of relatives open & notorious: cannot be ambiguous GOAL: give true owner notice in case he is monitoring Exclusive: for entire period; any time true owner uses, not exclusive before statutory period: TO can prosecute suit to quiet title or eject AP not enough to re-enter and re-possess w/in 5 years, must also file suit w/in 1 year of re-entry ( 320) continuous for statutory period: not constant, as normally used tolling: stops statute of limitation clock if insane, a minor, imprisoned or enlisted

tacking: among successive occupiers if privity exists CA: 5 years CA: require paying taxes limit AP claims to color of title cases Mannillo v. Gorski: 15-inch encroachment from steps, not intentional Issue 1: whether hostility requires bad intent Ct: rejection of Main doctrine (AP for deliberate wrongdoers, not accidental trespassers) wrongful intent is difficult to prove creates bad incentives: reward intentional wrongdoers Connecticut doctrine: intent is irrelevant if facts meets req Issue 2: Open & Notorious MUST give notice to owner: constructive notice Actual possession is not enough: TO must have actual notice Common Law modification for exceptions: NEW RULES Small encroachment (physical? Value?): no presumption of knowledge if along a common boundary Urban/crowded areas (expense of surveys): no presumption shifts part of burden to AP/trespassers Natural Resources Wild Animals - Pierson v. Post: who is entitled to fox? Pierson: fox = wild animal = RULE OF CAPTURE = belongs to no one until captured Post: not capture, but occupancy = chasing if has reasonable prospect Majoritys two-pronged approach formalist: occupancy = corporal possession; mere pursuit is not enough instrumentalist: utilitarian minimize disputes Dissent (??) instrumentalist: rule needs to match the resource culture: protect husbandry - majority rule gives no incentive to invest energy and time (Lockean) to pursue foxes if others can intervene and claim fox = bad incentives REASONABLE PROSPECT is enough institution: let sportsmen decide assumes sportsmen have the right goals Oil & Natural Resources: Rule of Capture efficient promotes innovations reduces litigation costs BUT tragedy of commons: take as much as possible wasteful: too many pumps reduces pressure market problems: create expectation of low cost/plentiful supply over-supply encourages inefficient consumption/use costs to store pumped oil over-investment in capital (better to leave resources unextracted) Remedies Government regulation: unitization limit # of units that can be extracted Agreement between companies: may lead to cartels, also inefficient Water Background moving from subsistence farming to technology differences in geography variables: quantity of water, soil conditions, technology, population, arid/moist, development of society

definitions RIPARIAN RIGHTS: any riparian owner (owns land on the banks of water) has right to make reasonable use of water (often limit to use on riparian land) PRIOR APPROPRIATION (rule of capture): first person to appropriate water for beneficial (cannot be wasted) use, late comers are junior appropriators Used in mountain states, where water is needed for irrigation, for mining EX: Evans v. Merriweather: Evans (upstream) diverts water, Merriweather (downstream) cannot run mill => requests injunction Courts reasoning division between natural (drinking, household) and artificial (manufacturing, irrigation) uses water is USUFRUCTUARY: natural uses come before artificial when not enough, reasonable use judgment of jury = distributive justice just proportion permitted, even if reduce benefits of others utilitarian: as little injury as possible *** Common Law used to create a standard, not a hard-and-fast rule *** now upstream has incentive to enter into contracts w/ downstream EX: Coffin v. Left Hand Ditch: Left Hand uses dam to divert water, Coffin destroys dam (self-help); LH sues for damages and injunctive relief *** interpreting statute, not making law Courts reasoning: PRIOR APPROPRIATION is right in absence of express statute Colorados particular circumstance dry, best farm land not next to water, but still need irrigation Protect rights of those who invested in land by diverting water BUT first user may not always be most efficient user existing culture based on diverting water Statute: interpreted to support first appropriation w/ due regard to legal rights of all = refer to prior appropriator detriment = refer to existing user Intellectual Property Legal doctrine for intellectual property rights utilitarian: NO IP rights no improvement to welfare commons: idea that anyone can have, cannot be claimed personhood: only IP rights for EXPRESSION of ideas attached to person Rule of Capture: in originality requirement Downey v. General Foods, Corp: Jell-O and Mr. Wiggle issue: whether Ps idea was NOVEL or ORIGINAL NOVEL = non-obvious ORIGINAL = first Ct: there CAN be property right in idea if novel & original not novel: idea took most obvious characteristic of product not original: D company had used idea in earlier ads Bushwald threshold for property right novel: not obvious idea

original: no prior work w/ similar storyline Scope of protection: how different/similar to avoid infringement? case-by-case STANDARD, not a rule too broad: discourage pursuit of improvements too narrow: discourage initial effort ** balance economic incentive/moral rewards for 1st generation w/ rewards/incentives for 2nd/3rd generations Remedy: arbitrary judgment Hughes Aircraft v. United States: satellite patents background: federal requirements for patent disclosed: trade-off for monopoly rights, benefit public w/ invention, leads to 2nd & 3rd generation improvements useful non-obvious original novel enabled/functioning Issue: whether there was an infringement; SCOPE of the patent Ct: 2 step analysis literal infringement: obvious or exact equivalent NO Doctrine of Equivalents YES, infringement performs substantially the same function in substantially the same way to obtain the same result embellishment is still w/in web of infringement Forms of property ownership Present interests Future interests Limitations on conditions to grants Rule Against Perpetuities (RAP) Rule of Destructibility of Contingent Remainders if contingent remainder does not vest by the expiration of the preceding estate = destroyed by operation of law revert back to grantor repealed in most jurisdictions Rule in Shelleys Case to avoid tax, transfer grant to heir by PURCHASE abolished in most states Doctrine of Worthier Title (??) if heirs interest in conveyance is identical to what they would have by descent, the conveyance to the heirs was void revert back to grantor still exist in half of states: makes land more alienable grants more likely upheld if specify intent children instead of heir Rule Against Restraints on Alienation (HANDOUT) conditions or covenants that restrain the grantees right to alienate his interest are void under certain conditions LANDOWNER AUTONOMY

Efficiency: get land/commodity into commerce types of constraints (on different types of interests) disabling: prohibits alienation forfeiture restraint: defines attempted alienation as condition that permits granter to terminate or automatically divests grantee in favor of grantor/3rd party promissory restraint: defines attempted alienation as breach of covenant and makes grantee liable for breach ** ALL void if applied to fee simple!! Riste v. Eastern Washington Bible Camp, Inc. (186) Restraint: can only sell to people w/ like beliefs must get permission from non-owner = disabling alienation fee simple + disabling restraint w/o justification = void limit to small group of potential buyers ct rules on anti-discrimination basis question: different from Home Owner Association? If market exists => ct will uphold estoppel: purchased w/ knowledge, discounted in price concern is w/ FUTURE marketability Concurrent Interests Tenancy In Common: undivided interest; right to possess and use ENTIRE property, subject to rights of other co-tenants; INHERITABLE creation: express, in grant or will, by operation of law presumption in favor of tenancy in common over joint tenancy termination by transferring all of the interests to a single person by partitioning Joint Tenancy: RIGHT OF SURVIVORSHIP among co-tenants creation: must be EXPLICIT or else default to tenancy in common 4 unities required interest: all must have IDENTICAL interest (fraction/type) title: interests must be created in the SAME grant time: must all VEST at the same moment possession: equal right/access and use to ALL portions of land termination = severance if one sells interest, buyer is severed => no survivorship original J-Ts are still J-Ts, newcomer is T-n-C CA requires NOTICE File letter to sell to self Must sever BEFORE death, cannot simply devise to heirs Exceptions: no survivorship/reward for wrongdoers (?) People v. Nogarr (193): mortgage vs. joint-tenant (no notice of mortgage) in CA: not severed by mortgage survivor gets property w/o mortgage fair b/c: waited too long to foreclose disadvantage to unsecured creditors banks have incentive to get EVERYONEs signature Title Theory States: mortgage = conveyance severed, subject to mortgage pass to heir w/ mortgage

Rights and Obligations among co-tenants Partition: end joint tenancy or tenancy in common in kind: physical division by sale: divide proceeds from sale by appraisal: permit co-tenants to buy each other out possession co-tenant not in possession cannot force co-tenant in possession to pay rent OUSTER: co-tenant bars another co-tenant from using the property ask for rent => refused = ouster ouster: may establish adverse possession => need AP elements + constructive notice to ousted ousted: can seek injunction + damages contribution: co-tenant may demand contribution from other co-tenants for expenditures necessarily made for the protection of the common property: if in sole possession, contribution set off by value of occupancy no contribution for managing the property no contribution for improving the property fiduciary obligations: fiduciary relationship exists if receive interest in same will or grant, or at same time by inheritance (???) cannot buy each other out (acquire superior title) w/o reasonable opportunity for other to pay their share of purchase price accounting rents: co-tenant out of possession may demand rend collected from 3rd parties depletion: waste => treble damages no exclusion = no waste not more than proportional share/consent = no waste cts: usually no damages, just req sharing of profits White v. Smyth: mine contracted, then moves on to mine fraction duty to account: yes stumpage value in Kirby Lumber Company: distinguishable coal is underground, quality is NOT uniform extracted high quality, has to share profits, not just whats above-and-beyond fractional share net profits = value of paving material, not raw rock Rights & Limitations on Property Owners Absolute Rights: Blackstone (??) Coase Theorem (HANDOUT) W/ zero transaction costs, efficiency will be achieved regardless of endowments so long as people can transfer rights => end up w/ most efficient user initial assignment of rights affects DISTRIBUTION, not ultimate user externalities are RECIPROCAL positive transaction costs negotiation/litigation costs: cost increases with # of parties free-rider problem: wait for others to finance bargaining costs hold-out problem: extort money by blocking negotiations opportunism: threaten others wealth with entitlement policy implications use assignment of rights to achieve distributive justice least cost avoider: party who could solve problem at lowest cost bears the onus of addressing the

problem caveats inalienable rights: cannot be transferred assumes everyone is an economic player high transaction costs in multiple party situations Calabresi & Melamed: Coase Theorem in the real world (HANDOUT) W/ transaction costs + irrationality of players no bargaining allocation matters assign rights to least cost avoider: most cheaply comply problem: how to figure out who that is? Enforcement property rules: subjective valuation of entitlement collectively decide who gets it, but not how much it is worth liability rules: external, objective standard of value of entitlement others can destroy initial entitlement if willing to pay for it eliminates hold-out and free-rider problem facilitates efficiency & distributive justice better than property rule inalienable: transfer is not permitted Equity: if efficiency is achievable, externalities are mutually detrimental Trespass (HANDOUT) Pile v. Pedrick (288): 1.5 into Ps property due to inaccurate survey in 1st: property rule = absolute right to exclude => tear wall down in real world: D will pay to have wall standing in 2nd: up to a year to remove wall split entitlement = limited right to encroach time to reconsider, negotiate Geragosian (289): underground pipes and fire escape overhang ct: P has property right => injunction alternative: create more BOX #3 options: loosening rules w/ defenses estoppel: promised, relied on detrimentally laches: waited to long = waived right of removal: allow encroacher to enter to remove slight encroachment = no injunction Raab v. Casper (292): Good Faith Improver (POINT?) P informs D of encroachment, P keeps building Statute: improver has burden of proof subjective: genuine + sincere belief objective: negligence (reasonable steps to verify?) remedies: landowner cannot be worse off 1st tier: right of removal, set-off, cover damages 2nd tier: adjust boundaries + compensation (liability rule) statute eliminates hold-out problem in good-faith cases greater burden for owners to monitor equity: evaluate future plans/expectations of true owner (?) Nuisance Takings

Common Law Doctrines Property vs. Liability Rules Trespass Takings

Social Norms When evaluating social norms, identify Are there established legal norms? Are they followed? Resource: nature of resource? Can benefits be shared? Is it in the commons? Community: are there shared values? Is it homogenous? Is it large/small? Is information readily spread/available (monitoring)? Are the players mobile? What kind of enforcement/sanction would have bite? What are the incentives to cooperate/cheat? Interaction: repeated? Long-term? Norms: are there established means of resolving disputes/competing interests? What makes social norms work repeat/multiple interactions sense of community: not fixated on bundle of sticks close-knit group: shared values, technology commitment to resolve issues between selves custom/substantive norm custom of dispute resolution/procedural norm enforcement/sanction mechanism: widespread acceptance of mechanism immobility: long-haul external circumstances (Eric Posner) role of outside forces as threats solidarity groups: reduce costs of defection problems w/ solidarity groups inbred cooperation => mafia enforcement mechanisms efficiency lowers when external threats disappears benefits members, but externalize problems slippery slope => ol boys network lack of formal legal system => incentive to cooperate (Robert Merges) recognizes savings in transaction costs in working as a group overcome tragedy of commons Fashion Guild: collude to safeguard from copycats problem: led to price-fixing, anti-competitive behavior good for members, bad for consumers, etc. externalized problems Script Registry: protect against idea theft protect writers from idea theft

protect studios from extortion extra-legal + arbitration/enforcement system REPEAT PLAYS in industry

How the government should codify/ratify norms (Robert Cooter) identify actual norms identify incentive structure behind norms evaluate incentive structure norm imposes an obligation to follow a cooperative strategy that fosters repeated plays no externalities/spillovers (ex. Price-fixing hurts consumers) enforce efficient norms from efficient incentive structures Shasta County (Ellickson)** connection between resource, cultural norms & legal institutions Legal Rules: not known, ignored by community, even law enforcement Open Range: owner liable for trespass only if swines, goats, vicious dogs trespassed lawful fence intentional trespass Close Range: owner STRICTLY liable for any trespass Remedy: liability/damages or injunction Social Norms enforcement mechanism = self-help (via gossip, etc.) being neighborly/reciprocity accounting in-kind: owing favors property owners: chalk it up to life property retriever: be prompt, polite, apologetic Nature of Resource rocky, dry soil: suitable for cattle, little else seasonal: require moving cattle around a lot; spread out => not always watched or fenced in: trespass is a way of life Culture ROOTS: in for long-haul repeat relationship = incentive to cooperate; expectation of future interactions attitude: live and let live mutual reliance frown upon going to authorities Result low density population: interactions more valuable gossip: harm reputation = effective enforcement system self-help: hide/kill cows LAW: serve as mediators, encourage abide by social norms legislature: threatens to close range self-selects: drives out people who do not abide by norms

Law Firms Cravath System: sharing model, regardless of how much is brought in Benefits less competition within firm no lateral partners: encourage longevity, investment in firm detriments highly conformist, homogenous shirk-grab-leave resentment against those who are not pulling weight Meritocracy: you eat what you kill Benefits minimize shirk-grab-leave detriments no incentive to invest in firm: short-term commitment valued quantity over quality Clients unhappy, leave firm no cohesive norm Market Institutions Landlord & Tenant Law Types of Leaseholds (HANDOUT) Term of Years: created by express agreement Tenancy for specified, definite period of time terminates automatically on last day of lease NO notice required Statute of Frauds apply (??) leases lasting over one year must be in writing reduces disputes over terms of lease Periodic Tenancy: created by express agreement tenancy for specified, definite period of time renews automatically at end of lease period (ex. Month) unless one party gives timely, written notice of termination, one period in advance of anniversary (or 6 months if period is a year or more) statute of frauds apply: over one year -> must be in writing by implication no valid lease in place, but T takes possession and L accepts periodic rental payments T holds over, L accepts rent rather than evict Lease does not specify duration, but payments are periodic Tenancy At Will: can be express, usually in absence of lease or w/ invalid lease, but L still permits T to take possession either landlord or tenant can terminate the lease at any time CALIFORNIA: requires 7-day notice Terminates at either partys death When L executes new lease When L conveys fee by implication if T takes possession w/o paying rent, but w/ Ls permission

Occupancy at Sufferance: T holds over after termination of lease not a true trespasser L can hold T to rent for another period or evict the tenant Termination of Leases (HANDOUT) mutual agreement = reconvey leasehold to L must comply w/ statute of frauds (make it in writing) if leftover time > 1 year destruction of the premises: terminates lease if T is not at fault eminent domain if gov takes all: compensate both L and T; lease terminated if govt takes part: lease still intact, compensates both L and T; T continues to pay full amount of rent (already compensated) death terminates tenancy at will does NOT terminate term of years (heir has to continue) impact on periodic tenancy varies from state to state substantial breach of material covenant: contract vs. property property: lease = conveyance of land from L to T eroded: recognition that not only land is conveyed, but also package of services whether clause breached is independent or dependent independent (property): breach does not terminate; injured party can pursue damages or injunctive relief ** favored by courts on most clauses dependent (contract): breach terminates ** the only dependent clause is the covenant of quiet enjoyment and the covenant to pay rent if L breaches Cov of QE, T no longer needs to pay rent if other clauses found to be dependent, terminates lease Medico-Dental (590): L breaches, leases to another drug store; sues for rent when T terminates Doctrines to be considered dependence/independence: whether breach terminates obligation to pay rent intent? express same rider/document: negotiated at the same time time of contracting material covenant: purpose of lease defeated w/o clause seriousness of breach: whether breach is material & substantial original agreement: permitted Boonshafts pharmacy did NOTHING when D complained: acquiesced when Boonshaft opened pharmacy whether D waived right by selling drugs wholesale to competitor - D stopped selling to Boonshaft as soon as aware of suit Landlords Rights & Remedies Self-help: severely limited by statute CA Civil Code 789.3: prohibits action to drive T off premise Cannot turn off utilities cannot block access by changing locks remove doors or windows allows T to seek damages and injunctive relief forcible entry (CA Civil Code 1159) breaks in, by violence or circumstances of terror enters enters, and forcibly turns out party in possession liable for TREBLE damages

forcible detainer (CA Civil Code 1160) by force/threats of violence, unlawfully holds and keeps possession unlawfully enters and refuses to surrender to former occupant liable for TREBLE DAMAGES Jordan v. Talbot (602): rent past due, L seizes Ts goods, moved them into storage ct stretched 1159 to include using spare key no force req maintain the peace: violence likely to escalate when home is invaded bright-line rule: no question on force consent is the only issue risk of error: L may be wrong in belief in right to enter insistence on going through legal system did T waiver her rights (contract vs. property) contract regime: cannot waive rights when uninformed at time when lease signed, did not consent to violence waive right => violation of public policy rights are inalienable: cannot be contracted away tenants are unsophisticated imbalance of bargaining power children: cannot engage in negotiations, but affected dissent: contract regime => no forcible entry or detainer *** when do contracts override statute? when statute speaks, unless contracted otherwise or cannot be waived when statute is silent, COURTS decide for Ts breach and holding over unlawful detainer action: quick/short process for EVICTION serve T w/ notice to cure or quit no notice if lease is terminated or if no cure available if nothing done, lease = terminated/forfeited after 3 days decides who has legal possession damages pursued in separate action get sheriff to evict T * * actual eviction: L takes away part of the premise constructive eviction: act or failure to act makes use of premises impossible)

damages: separate action from unlawful detainer hold tenant to another term under original lease terms Ts liability depends on whether negotiations were in progress, but is not a complete defense for Ts abandonment: left premises w/o paying rent due (absent for X days, removed personal possession from property) accept surrender: terminates lease implied: accept key, etc. intent not to return periodic suits for rent: sue for rent as it becomes due or for entire sum at end of lease Landlord required to MITIGATE damages by making reasonable efforts to relet the premise Sommer v. Kridel (614): T wrote letter to terminate lease, L did not lease to interested renter

obligation to mitigate is implied L must take reasonable steps to find new T: L has burden of proof to show measures were taken Discount rent that wouldve come based on cts determination: no set measurement for steps taken; ad hoc reletting on tenants account: T liable for balance of payment raises issues of accepting surrender when L leases to new T original T remains liable for any portion not paid by new T Tenants Rights & Remedies Implied Covenant to Deliver Possession: L has to deliver premises on 1st day of lease Majority actual possession: L has right to lease AND premise is available L is in best position to evict holdovers and ensure availability of premises Minority legal possession: L has legal right to lease and has not conveyed to another Remedy under both: T can terminate is (1) substantial breach of (2) substantial covenant abate rend but stays the lease: lease in abeyance recover damages from either termination or abatement CAN be waived; contract enforceable Implied Covenant of Quiet Enjoyment: prohibition against L L will not disrupt T in quiet enjoyment of premises 3rd party also apply to those w/ paramount title does NOT apply to neighbors or co-tenants b/c (?? 11/1/99) other tenants are also beneficiaries of lease, can sue as 3rd party L can control other T co-tenants T can terminate, but NO ROOM FOR ERROR - ct can find no breach = abandonment => liable for rent Implied Warranty of Habitability = affirmative obligation on L cts use housing codes as standard on what is habitable clear rule, deference to legislative decisions INALIENABLE Sets standard for: bldg structure, facilities, services, & occupancy Why imply covenant? Particularly in urban dwellings T not interest in land, but in the house for specific use T intend to use premises immediately w/o making repairs T has no real opportunity to inspect for defects Remedies damages and/or injunctive relief terminate lease: no room for error ** no good faith defense: designed to motivate L, not to make T whole (protection: seek declaratory judgment from ct) self-help repair & deduct: only if substantially untenable give notice of need for repair give notice of intent to repair deduct repair costs from rent (no waste) limited to 2 months rent/year give L incentives to be responsive (labor costs vary) rent withholding withhold rent from L

sometimes T pays rent into cts escrow, L can recover if repair w/in period rent abatement proportional to harm usually asserted as an affirmative defense when L sues to evict based on non-payment of rent Javins (634): issue: whether violation of housing code releases obligation to pay rent holding: warranty of habitability is implied by housing code into lease moves from property to contract regime violation of housing code => remedies for breach of contract warranty is INALIENABLE unique situation of urban dwellers looking for place to LIVE, no interest in land not skilled to make repairs mobile: no incentive to invest in repairs complexities of dwellings => difficult to repair Rent Control & Low-Income Housing (FIND NOTES!) Types of rent control first generation/hard: freeze on nominal rents second generation/soft: permits increases based on inflation; balances L needs to recover costs of improvement, otherwise => disinvest T w/ fixed income, ability to respond to inflation/gentrification arguments against rent control benefits people who do not need the help Unfair shift of costs to landowners Hurt tenants (insider vs. outsider trade-offs) current T: L cuts back on maintenance potential T: investors turn to non-housing investments newcomers: current T does not move, inhibits turnover low-income housing Nonpossessory Interests General deviation from contract law binding on successors of both grantor and grantee RAP does not apply Preserve collective decision-making for preserving public rights can be custom-tailored to needs of participants usually precedes development: no freerider/hold-out problems community-wide agreement durable: hard to remove gives incentive to invest no need to buy a lot of land to preserve interest in specific lot BUT had to adjust to changes in society: requires EVERYONE to agree to change agreement Easements Classification DOMINANT POSSESSOR = easement holder SERVIENT OWNER = owner of property subject to the easement affirmative vs. negative

affirmative: right to use someone elses land negative: prohibit/enjoin other from interference w/ light, air, lateral support, artificial stream appurtenant vs. in gross appurtenant: right is personal to owner, but also benefits use of land if not expressed, assumed to be so if benefits land; can be passed on to successor in gross: personal to holder, but NOT TRANSFERABLE; express in gross trumps appurtenant repairs: burden on easement holder to maintain & repair creation express easement: statute of frauds: must be in writing, signed, recorded by grant: A conveys right-of-way across As land to B by reservation: A conveys fee simple to B, but reserves right-of-way across land for self scope: limited by terms easement holder cannot increase or create new burden on the servient tenement Faus v. City of Los Angeles (726): Facts: easement for passenger railway => roads for motor coaches Faus: violation of easement agreement => reversion; LA paving roads = physical invasion => just compensation Ct: primary object and purpose of easement Broad interpretation => no violation => no reversion ** once easement is dedicated to the public, very little control over scope of use easement by operation of law: implication & necessity implied (based on INTENT) if 4 requirements met (in cases where original owner sells part to another) two parcels originally under single ownership permanent/continuous use across servient tenement BEOFRE subdivision use was apparent upon inspection TOUGH ISSUE easement is reasonably necessary scope: limited to prior use and foreseeable changes in the use of the dominant tenement what was actually foreseeable and thus intended at time of agreement necessity (based on NEED) if (when land is subdivided, and one parcel is landlocked) standards range from absolute necessity to reasonable necessity CA (from Reese): strict necessity more stringent than reasonable necessity scope: what is necessary for use of dominant tenement policy reason: prevent perpetual idleness due to lack of access Reese v. Borghi (734): Facts: P sold to D, P becomes landlocked D: ct awarding easement by necessity = takings Statute exists for private condemnation: w/ just compensation Ct: common law right to E by N not wiped out by statute Easement by necessity = pre-existing doctrine CA Rule: strict necessity + previously under same ownership easement by prescription (E/P)(similar to adverse possession) requirements = same as adverse possession; use must be actual

adverse/hostile: no permission open & notorious continuous and uninterrupted for prescriptive period problems establishing continuous use: public use of private property (ex. Sidewalk, parking lots) break continuous use once a year CA Civil Code s. 1008: put up signs to show permission Use of easement may be co-extensive w/ true owner NO negative easements by prescription Finley v. Boto (741) Facts: P needs pathway btwn buildings to access back of apartment; D builds fence P: claims E/P violated by fence; wants damages and injunction to remove fence D: neighborly gesture of goodwill; permissive Ct: issue = whether use was adverse (permission?) Neighborly accommodation = implied permission Determination based on facts specific to case Relation of parties Conduct Situation of property Surrounding circumstances termination by expiration at end of designated period necessity: when necessity ends changed conditions cannot be invoked to terminate, BUT, if structure destroyed, easements ends by easement holder release: holder transfers easement to servient tenement owner abandonment: easement holder stops using the easement AND independently manifests an intent to abandon estoppel: three critieria easement holders words/conduct indicate no longer will use servient owners reasonable reliance on words/conduct servient owners material change in position (??) excessive use some states: terminates most states: damages and injunctive relief by owner of servient tenement merger: servient owner buys the dominant tenement sale to bona fide purchaser (BFP) for value no notice E/P, implication, necessity all trump BFP, even if w/o notice Prescription: servient owner demonstrate exclusive control of land for prescriptive period by third parties condemnation: eminent domain tax sale: varies between states whether purchaser of servient tenement takes title subject to the easement mortagagee forecloses: depends on which comes first

Real Covenants Definition: a promise connected to land, enforceable by damages difference from easements affirmative RC: promise to do an affirmative act negative RC: promise to refrain from otherwise legal action on own land anything beyond air, light, support, flow of artificial stream RC is personal: only against covenantor and successor, not community at large Burdens & Benefits (HANDOUT): in order to run to successors Writing: must satisfy Statute of Frauds Intent: original parties intent for covenant to run to successors best to make it express interpreted to run with land if touch & concern Horizontal privity burden: requires covenant to be created simultaneously with a transfer of interest (covenant must be same document as deed) benefit: no requirement Vertical privity: proportionality between burden and interest burden: succeed to identical interest tenant: subject to easement, but not to RC adverse possessor: subject to easement, but not to RC benefit: succeed to prior possessors interest, need not be identical Touch & concern: restriction must affect/enhance successors use of the land (covenants are REAL/associated with the land rather than personal promises between the parties) PURPOSE: promote land utilization physical use or restriction of covenantors land covenant restricting competing business activity tenants covenant to pay rent payment of homeowner association fees Epstein: abolish doctrine of T&C a promise is a promise Real covenants are rare b/c they depress value of land Leave to intent of original parties express RISK: ct will abolish valuable covenants, req renegotiation PROBLEM: private actors cannot be trusted Notice: none required under common law under recording acts, bona fide purchaser for value is not liable for burden if not notified remedy for breach: damages ONLY (injunctive relief available only for equitable servitudes) issue: whether promises between original parties are binding on successors doctrine of changed conditions: defense to claim for damages termination express: terminates at fixed point in time, or upon conditions covenantor may waive right to enforce covenant (then invalid forever? Can covenantor start enforcing again after long hiatus????) automatically expire after statutorily fixed period unless renewed doctrine of changed conditions: grounds to terminate Eagle Enterprises (761) Facts: summer home => year-round dwelling D wants out of covenant to pay for water Test case: other homeowners may follow lead

Ct: covenant not enforceable b/c does not run with land test: whether covenant substantially alters ownership rights covenant was a personal, contractual promise (WHAT IS THE POINT OF THIS CASE???) Equitable Servitudes difference from Real Covenants no privity required easier to form equitable remedy: injunction, not damages ** what kind of remedy does the client want?? (are the names inter-changeable? Covenants look alike?) criteria to run with the land Burden Touch & Concern Notice: not liable unless had notice when acquired possession (none required if it was a donation, inheritance) Actual Constructive: uniform appearance of neighborhood Record: recorded in the deed Benefit: Touch & Concern Intent Notice: none required how will they know to enforce? Remedy = specific performance of covenant = injunction injunction: recover past AND future payment easier to set up, easier to prove (?), gets attention FAST lien on property: value of property = upper limit on remedy prior mortgages have first dibs damages: recover back payment can go after other assets => more money defenses changed conditions: no longer possible to fulfill ORIGINAL INTENT of parties => terminates ES violation of public policy waiver, estoppel, laches, unclean hands durability of ES => holdout problem => impeded progress changed conditions expiration date process for termination (ex. majority vote) statutory termination Bolotin v. Rindge (767) Facts: reciprocal covenant restricted to single-family houses Ps property fronts Wilshire P: wants declaratory relief ES not enforceable b/c of changed conditions => property not valuable as residential Below: unenforceable due to changed conditions burden is inequitable to P: no value in lot if residential

no benefit to adjoining owner if enforced Ds market value may go UP if P use as commercial Ct: ES must be enforced if original purpose can still be realized Test: can original purpose still be fulfilled? if yes, enforce even if less profitable use market value is IMMATERIAL purpose: preserve residential area can still be accomplished by enforcement if P objects, unfair to their lot had notice when purchased shouldve investigated restrictions (lack thereof) of adjacent lots domino effect of lax enforcement Homeowners Associations Nature mostly restrictive obligations affirmative obligation: pay fee to association for maintenance necessary to run neighborhood: override collective action problem Doctrinal problems association does not own property benefited by covenant monthly assessments do not touch & concern the land enforceable between original parties under contract what about successors? English Rule: burden expires when interest is sold American Rule: permits enforcement in equity Neponsit (777) Issue 1: does affirmative covenants run with the land? usually, affirmative covenants do not run with the land new test: based on effect of covenant rather than aff/neg does covenant affect the legal relations (impose burdens and benefits) on the PARTICULAR parties involved? Doing something = paying someone else to do it D = owner of easement = pay for maintenance of easement Issue 2: privity association does not own property => no privity abandon technical for pragmatic association is made up of property owners, represent their interest *** Why use run with land rather than contract or social norms? eliminate high transaction costs of repeated contract negotiation urban environment not conducive to social norms non-reciprocal covenants not enforceable Lesson: including a nonreciprocal restrictive covenant in each homeowners deed will only permit subsequent purchasers to enforce against prior purchasers, and not the other way around Non-uniform requirements issue: whether cts should IMPLY reciprocal ES in deeds that do not EXPLICITLY contain restrictions only imply ES, never RC: no damages, only injunctive relief Turner v. Brocato (784) Facts: restricted to single-family homes, except for 3 lots D owns one of three, wants to use land for something else Somers, also one of three, use for different purpose, neighbors did not enforce Ct: Test = intent for uniformity + notice at time of purchase

Intent (for uniform general scheme + reliance): at first sale Selling point for agents and buyers BIG sign Notice D saw signs Inquiry notice: shouldve noticed residential character of neighborhood Title Company report: initial report indicated subject to Poplar Hills restrictions = notice => inquire non-enforcement against Somers is irrelevant rights are NOT waived separate rights against each owner Reform unification: streamline ES and RC termination process easement: difficult to terminate due to permanent (fee simple) nature Real Covenants: remedy in LAW => no equitable defenses Equitable Servitudes: VERY durable = strength = weakness balance: reliance on promises vs. social needs/changes private devices: vote mechanism; expiration date w/in agreement; timed => forced sale/buy-out of covenant public devices: statute (ex. MA), expires automatically unless renewed by significant % termination AND renewal mechanism adjust to time and market conditions Political Institutions Theories of Local Politics Pluralism: FOCUS = individual interests politics as mediator: self-interested groups for scarce resources interests are pre-selected, injected into political system interests influence governance interest group politics: legislators promote interest of constituents, not promote public good benefit: individuals have more direct voice in local govt problems: FACTIONS, particularly in municipalities homogenous communities: less incentive for coalitions and bargaining tyranny of the majority: at expense of minority (landowners, future residents) unicameral municipal governments: easily captured by faction LIMITATION: judicial review reasonableness as standard: ensure factual basis and proper procedural process often does not address impact on non-residents Republicanism: FOCUS = civic virtue politics as distinct & superior sphere: raise citizens above self-interest political process changes individual preferences private interests are PRODUCTS, not inputs, of govt action discussion & negotiation: compelled to compromise in order to appeal to common interests application to municipal government local level => most opportunity for discussion, interaction most likely to have shared value interests and put aside personal for common interest

problems mistreatment of dissenting groups overemphasis on consensus and conflict suppression suppress individualism and difference (HOW DIFFERENT FROM PLURALISM?) fosters exclusion of people who differ in what is common good Public Choice Theory: FOCUS = economics politics as an economic transaction interest groups = demand, legislators = supply problem yield too many rent-seeking laws concentrated benefits, distributed costs free-rider problem: not enough members will contribute to effort less collective action from large, diffuse groups small, elite groups more easily organized agency capture: agency beholden to interest group Tiebout Hypothesis: FOCUS = mobility of residents Jurisdictions compete for citizens individuals vote with their feet and select communities most cogenial to their needs Assumptions limitless supply of jurisdictions costless mobility full information on each jurisdiction no inter-jurisdictional externalities application to municipal governments local jurisdictions ARE concerned with maintaining tax base, create jobs problem: encourage more self-interested behavior (create locally segregated communities?) Legal & Political Institutions Regulating Land Use Legal Authority Dillons Rule municipalities may exercise authority expressly granted by the state legislature enabling acts: enable cities to exercise authority to zone, etc. constitutional home rules: broader than zoning, include taxing municipalities have authority that states cannot take away cities have authority to zone, but need not exercise authority (which one of the two prevails?) Mechanisms zoning ordinances: limits size, location and use, several blocks at a time easy to do pre-development post-development: watch out for takings challenges go around existing uses exceptions special use permits: identified, presumptively valid, burden on city variances: presumptively invalid, burden on landowner rezone: problems go through political process required to comply w/ general plan spot zoning

overlap of zoning and equitable servitudes servitudes still enforceable zoning does not cancel out private agreements general plans: specify goals for future development distribution of population infrastructure subdivision controls: for residential development specific criteria for location/design of streets, utility lines, other public infrastructure frequently require dedication of land or payments for off-site improvements (roads, parks, etc) particularly for single-family developments building codes: materials, standards, aesthetics of new buildings Euclidean Zoning Village of Euclid v. Ambler Realty (901) Facts: P: mere existence of ordinance diminish value of property by 75% => deprivation of property w/o due process of law Due process vs. takings challeng due process: challenge citys authority to zone; on its face takings: specific application to parcel; as applied issue: whether police power extends beyond health and safety => aesthetics pro: uses are interdependent => need cooperation/coordination government eliminates collective action problem con: beauty is in eye of the beholder should be limited to power under nuisance ct: police power is BROAD => more power to the city test: set aside zoning ordinance ONLY IF no foundation in reason, merely arbitrary no substantial relation to the public good judicial deference to legislative judgments but still in terms of public health, safety, welfare (WHAT ELSE IS IMPORTANT TO KNOW ABOUT EUCLID?) Perspectives Mandelker: zoning = response to market failure Zoning eliminates spillovers and externalities of different uses nuisance law is inefficient: free-rider problem ultimately about tastes and preferences, not nuisances majority rule => imposition of majority preferences zoning deprives some property rights but under Penn Central: no compensation unless wipeout Calabresi & Melamed?? Karkkainen: zoning = protect homeowners surplus market does not reflect full value of home intangibles w/ non-market value: feel of community, etc

non-fungible = irreplaceable if non-market value not calculated => overdevelopment problems community character: means to exclude racial/economic groups (link between exclusion of use and of people) city has incentive to impose restrictions in name of surplus extort developers excessive restrictions to generate revenues (but wouldnt Tiebout Hypothesis make a difference?) Epstein: zoning = useless (laissez-faire) Three other doctrines accomplish same results nuisance takings servitudes zoning is oppressive to landowners first possession/rule of capture is inefficient landowners subject to minor inconveniences can suppress development => hold out/extortions leads to monotony of land use problems nuisance law can be expensive to litigate; free-rider problem servitudes have high negotiation costs, limited to undeveloped areas Ellickson: zoning = inefficient (hybrid system) more efficient to enforce through nuisance rules + set fines zoning impairs growth, discriminates against less influential costs of zoning nuisance costs: from spillovers administrative costs: administering/enforcing regulations prevention costs: opportunity costs of foregone development Fischel: zoning = redistribution of entitlements (Calabresi) establish control for those with political control of community landowner vs. city: does not matter who wins zoning rights are for sale bargaining will lead to same efficient outcome (Coase) city may have incentives to restrict sales zoning emphasize value to insiders, not outsiders restrictions are considered as valuable BUT incentives limited by Takings doctrine: has to have reasonable purpose Tiebout Hypothesis: competition for development (tax base, jobs, etc.) Developers can also work the political process Compete with non-development investments problems does not apply to cities that dont want to develop no market discrimination in selling/buying cities are not good at pricing value of development => under-price => overdeveloped

Scope of Police Power Zoning for Aesthetics Berman (920): shift away from req public safety, health, welfare city wanted to condemn private property => private development part of slum clearance program Property owner: NOT for public purpose, violate due process Ct: no violation of due process state/fed legislature, NOT judiciary, determines scope of police powers permissible limits of police power are BROAD concept of public welfare is broad and inclusive spiritual, physical, aesthetic, monetary post-Berman fed cts recognize citys power to promote municipal interests historical preservation in Penn Central aesthetic zoning is within police power anti-monotony ordinances signs possible constitutional violations Equal Protection Clause First Amendment/Free Speech cannot regulate CONTENT of speech can regulate time, place & manner Metromedia: prohibit off-premise commercial billboards, but permitted on-premise commercial signs off-site ban/on-site exemption = OK b/c aesthetics & traffic limiting on-site to commercial = violate 1st Amendment Taxpayers for Vincent: prohibited signs on public property aesthetics = substantial government interest City can control value of OWN property OWNERSHIP MATTERS Content neutral: ALL signs prohibited ordinance must not curtail more speech than necessary to accomplish purpose Linkmark: ban for sale signs to discourage white flight content-specific = violated 1st Amendment City of Ladue v. Gilleo (922): anti-war signs posted at home 1st Amendment violation? YES prohibits ALL speech, seems content neutral too broad: bans TOO MUCH speech no adequate substitute for posting at HOME comparison with takings 1st Amend rights (inalienable) > economic/development rights comparison w/ State v. Shack right to exclude vs. right to express nature of right taken from landowners vs. nature of value protected/societys goal growth controls Rationale preservation of resources (open space, natural resources) prevent over-taxing infrastructure (congestion) exact benefits from developers

measures moratorium on building permits, development greenbelt zones: no development permitted sequential development: time-spaced out problem: shift social costs = externalities on non-residents Livermore (950): zoning ordinance prohibits permit issuance Ct reinterprets general welfare Cities need to develop info on how affects other areas define region include non-residents affected by ordinance include current AND projected residents still deferential: if debatable, leave to legislative discretion burden of proof: on challenger cities then respond with own information on impact CA statute: encourages consideration of interjurisdictional impact not appropriate for courts to decide: dont have the resources Dissent/Mosk: patchwork of enclaves community character = potential for discriminatory exclusion absolute prohibition on development should be presumptively invalid => burden on city to justify Ellickson (968): social cost of growth control affect more than just developers growth control: lowers supply => increase cost of housing winners homeowners: as supply decreases, value of home increases nearby landowners: serve as substitutes, value increases losers owners of undeveloped land: restriction => less profits current tenants: rent increases developers factors: associated w/ development workers, banks, etc. prospective homeowners/tenants: kept out majoritarian politics: homogenous, single-issue => majority dominates employment of legal rules & damages let developers build, but at a cost = damages to community Flexibility in Land Use Controls comprehensive planning often required before development can proceed difficult b/c hard to predict variables (economy, population, etc) Mandelker: value-judgment battle between community control and freedom of individual property owners legislative & administrative flexibility in zoning: update zoning scheme variance: presumptively invalid burden on landowner show special hardship = cannot yield reasonable return show exemption will not undermine original purpose types area variance: relaxation of size restrictions use variance: permit prohibited use stricter substantive/procedural criteria harder to obtain

conditional uses/special exceptions: presumptively valid burden on city to deny permission easier for applicant to obtain zoning amendments: judicial deference ballot measures: uninformed, ad hoc decisions = BAD consistency w/ general plan: most cts do not require spot zoning: favors owner of the rezoned parcel and injures neighboring landowners more closely scrutinized evaluates negative spillovers and public benefit downzoning: permit only less intensive uses vested rights: landowners relied on permissive ordinance and in good faith contract zoning: explicit exchange permission for exactions valid if not binding on cities: developer can volunteer exaction and city can respond planned unit developments (PUDS): self-contained residential area include mix-use flexibility, economy/efficiency, open space conflict of interest, corruption, bargaining Conflict of Interest/Corruption Schauer v. City of Miami Beach (1022) Facts: zoning amendment essential vote from Halperin: gains $600,000 disclosed local/municipal govt: hybrid of legislative and administrative ct: separation of power regard ordinance as legislative deferential to legislative action; overturn only if ultravires: outside/beyond authority procedural violation of enabling act fraud: none b/c interest is disclosed => accountability Fleming v. City of Tacoma (1025) Facts: Murtlands vote was NOT essential (retained by developers after vote) Ct: APPEARANCE of impropriety is enough Process tainted even if vote is not essential avoids examining motives of councilmembers too intrusive on legislative process base on objective circumstances local legislators: more adjudicatory than legislative zoning ordinance may be broad, but amendment is narrow localized effect: less activism from community less accountability CA Political Reform Act of 1974 (HANDOUT) disqualifies legislator in decision-making process disclosure required of conflict of interest enforcement mechanism civil/criminal penalties injunctive relief: enjoin officials to disclose and recuse set aside official action: not applied to state legislature Bargaining

Fischel: difference between bargaining and corruption corruption: compensating party NOT affected is inefficient bargaining: exchange of incentives for needs => efficient Vicki Been: reasons for exactions Shift costs of infrastructure to developers efficiency: force developers to mitigate/internalize social costs criticism of Nollan: nexus is irrelevant, as long as the AMOUNT is proportional control device: facilitate/inhibit growth wealth redistribution: from developers/new residents => current residents dangers of exactions over-extort from developers over-regulate as means to raise funds => dependent BUT unlikely to regulate because of competition with other jurisdictions for development with its electorate (ballot initiatives) higher government private/non-development investments types of exactions (in kind or payment in lieu) ** ALL REQUIRE RATIONAL RELATION subdivision exactions: permission to divide one large parcel into several city require sidewalks, improvements that benefits the subdivision off-site dedications: more problematic require relation impact fees: mitigate spillover costs finance facilities that will be used by development linkage programs: require moderate/low-income housing presume commercial development bring in workers increase demand for housing/displace current residents inclusionary zoning: mandatory set-aside for moderate/low-income Ellickson: not effective help those who do not need help benefits primarily moderate (not low) income families double tax on housing construction (exaction + undesirable type of housing) Takings as limit on exactions Nollan (1042): required easement across property in coastal zone unconstitutional condition doctrine can city deny permit? YES if can deny permit, can also provide alternative PURPOSE: mitigate harm caused by house Can demand exaction for harm caused, but exaction has to be RELATED to harm caused = nexus requiring an easement is excessive NOT the least restrictive means Vicki Been: nexus is not necessary goal is to force developers to internalize cost prohibits substitute for harm caused cts trump legislative judgment on whether nexus exists chills creativity to mitigate impact of development (can only approve or deny)

Dolan (1049): require bike path and floodplain dedication for expansion Pass Nollan unconstitutional condition doctrine? YES Concern: magnitude of exaction is disproportionate to harm caused Ct: rough proportionality no mathematical precision required BUT must quantify extent of harm and remedy via exaction Must use least restrictive alternative Covenant would suffice, did not need to deprive property right NEW: burden on CITY burden on individual if challenge general impact burden on city when affects only individual property owner (?) application limited to land dedications? Any kind of exactions? ~ Men of Their Words ~ Calabresi & Melamed Coase Theorem in real world: w/ transaction costs and irrationality of players (11) initial entitlements DO matter assign to achieve distributive justice, burden to least cost avoider liability rule facilitates efficiency & distributive justice better than property rule Demsetz New market + new technology (1) increase demand => externalities + high transaction costs facilitates private property regimes Ellickson (efficiency & unidentified/uncalculated social costs/externalities) Shasta County (15): connection/interaction between nature of resource + legal rules + social norms + culture Zoning (34): inefficient costs: spillover + administrative/enforcement + lost opportunity better alternative: nuisance rules + schedule of fines Growth controls (36): social costs affect more than just developers lowers supply => increase cost of housing => lots of losers Inclusionary zoning (39): inefficient helps people who do not need the help: moderate-income families Epstein (laissez faire) Real covenants (26): abolish doctrine of touch & concern a promise is a promise Zoning (34): useless can achieve same result through Nuisance + takings + servitudes Fischel (similar to Calabresi & Melamed) Zoning (34): redistribution of entitlements to politically influential if zoning rights are for sale, will reach efficient allocation

issue: what is the efficient allocation? A matter of degrees Bargaining (38): efficient, different from corruption Sax (interaction between culture and institutions) other public/social values (345) => erosion of property rights Tiebout Hypothesis (32): mobility of residents + inter-jurisdiction competition PAGE Property, PAGE 6